Adeoye v. Sonnet Insurance Company, 2023 CanLII 12984

Citation: Adeoye v. Sonnet Insurance Company, 2023 ONLAT 20-011237/AABS

Licence Appeal Tribunal File Number: 20-011237/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Akeem Adewale Adeoye Applicant

and

Sonnet Insurance Company Respondent

DECISION

ADJUDICATOR: Anita Goela

APPEARANCES:

For the Applicant: Ramendeep Minhas, Counsel

For the Respondent: Lauren Kolarek, Counsel

HEARD: By way of written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on June 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The parties participated in a case conference on June 11, 2021 and agreed to the issues to be determined in this application. The issues to be decided are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and the Minor Injury Guideline?

ii. Is the applicant entitled to $200.00 for physiotherapy services, proposed by 101 Physio in a treatment plan (partially approved, total amount $1,300.00, approved for $1,100.00).) denied on October 29, 2019?

iii. Is the applicant entitled to $4,240.47 for medical services/physical rehabilitation, proposed by 101 Physio in a treatment plan denied on October 16, 2019?

iv. Is the applicant entitled to $2,460.00 for psychological services, proposed by 101 Assessments in a treatment plan denied on August 16, 2019?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the following:

a. The applicant is not subject to the MIG.

b. The applicant is entitled to the balance of $200.00 for the physiotherapy services treatment plan listed in [2]ii.

c. The applicant is not entitled to the medical services/physical rehabilitation treatment plan.

d. The applicant is not entitled to the psychological treatment plan.

e. The applicant is entitled to interest in accordance with the Schedule for issue [3]b. above.

ANALYSIS

Minor Injury Guideline

4Section 3 of the Schedule defines “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18 of the Schedule sets out the framework for the treatment of minor injuries. The applicant bears the onus of proving on a balance of probabilities that he should not be confined to the MIG because his injuries are not predominantly minor, or that he suffers from a pre-existing medical condition that prevents him from reaching maximal medical recovery if he is subject to the $3,500.00 monetary limit in the MIG.¹

6It is well-established in previous Tribunal case law that psychological injuries as a result of the accident and that are more than mere clinically-associated sequelae to minor injuries are outside the definition of “minor injury,” as is chronic pain that causes functional impairment.

7The applicant submits that his injuries fall outside the MIG because of his documented pre-existing medical condition, post-accident chronic pain and psychological impairments.

8The applicant relies on his OCF-3 Disability Certificate completed by chiropractor, Dr. Coghlan. On August 16, 2019. Dr. Coghlan identifies the applicant’s injuries and sequelae as cervicobrachial syndrome – thoracic outlet syndrome. This syndrome includes headache, concussion, sprain and strain of joints and ligaments of neck, lumbar spine, pelvis, pain in upper limb, dizziness, malaise, fatigue, sleep issues, nightmares, anxiety and depression, and mild cognitive disorder.

9The applicant’s medical history includes a 2011 automobile accident that resulted in two plates and multiple screws being permanently surgically placed in his left arm. The parties agree that the applicant has a pre-existing medical condition. However, the respondent’s position is that the pre-existing condition does not prevent the applicant from reaching maximal medical recovery under the MIG and that the applicant’s injuries are minor.

10The applicant relies on the clinical notes and records (CNR) from his family physician, Dr. Narducci. I note that the CNR of Dr. Narducci contain no entries pre-accident and only two entries post-accident.

11On August 6, 2019, about two weeks post-accident, Dr. Narducci. summarizes the applicant’s accident from 2011 and notes that the applicant cannot lift anything since the 2011 accident. This was the first time the applicant met and became a patient of Dr. Narducci. Dr. Narducci does not conduct an examination of the applicant’s ability to lift. There are no pre-accident CNR with Dr. Narducci. I interpret this to be a self-report from the applicant and not a clinical observation or opinion by Dr. Narducci.

12In this same visit, Dr. Narducci observes that there is swelling in the applicant’s left arm and refers the applicant for a sleep study because of the applicant’s sleeping issues. On the sleep study referral, Dr. Narducci indicates that the applicant had high blood pressure during the clinical visit. Under “history of sleep problems”, she checks off that the applicant snores and apneas have been witnessed. There is no reference to the subject accident in the consultation note or referral.

13The only other CNR from Dr. Narducci is dated September 20, 2022. It mentions sleeping problems with morning headaches. There is no reference to the subject accident.

14On October 26, 2019, the applicant attended the emergency department of Humber River Hospital with complaints from the subject accident.

15In his report from that day, the emergency physician notes that the applicant attended the hospital because his partner needed to be seen for a medical issue. The applicant complained of diffuse muscle aches on his right-sided lower back, left arm, left trapezius, paraspinal muscles of left neck, recurrent headaches since the accident. The applicant reported that he wakes up with headaches that come and go.

Pre-existing medical condition: Loose screw in left arm plate

16The applicant was referred to the hospital’s fracture clinic and was seen on October 28, 2019 by Dr. Townley, orthopedic surgeon. In his report, Dr. Townley reviews the applicant’s x-ray obtained that same day at the hospital and includes the following findings and opinions:

“A screw through the region of the ulnar fracture has backed out and is slightly prominent. I suspect this occurred well before the accident. […]

I explained to [the applicant] that he probably has some soft-tissue irritation following the recent motor vehicle accident. If he likes, I can remove the screw, a fairly straightforward procedure, but he is being reluctant to undergo further surgery.”

17I find that Dr. Townley’s report provides objective evidence that the screw in the applicant’s left arm is out of position. I accept that this change in position is likely causing the applicant pain and discomfort.

18There is insufficient evidence that the subject accident caused the change in position. If the accident did cause the change, it appears to have been tolerated by the applicant as the applicant attended his family physician a month after the accident and was seen in emergency for muscle pain three months after that. Additionally, Dr. Townley opines that this change occurred before the subject accident on June 25, 2019.

19However, the applicant is not required to persuade me that the subject accident caused the screw to become loose or change position. Even if the loose screw predates the accident, I accept the applicant’s pain and discomfort in his left arm was aggravated because of the accident.

20The loose screw in the applicant’s arm is the pre-existing medical condition I will consider when determining whether this medical condition prevents him from reaching maximal medical recovery if he is subject to the $3,500.00 monetary limit in the MIG.

21I am persuaded that the applicant requires more than $3,500.00 in medical and rehabilitation benefits to achieve maximal medical recovery. I agree with the applicant that the hardware in the applicant’s arm is likely to require treatment that is outside the MIG. I find that shifting hardware in the applicant’s arm is an obstacle to recovery within the $3,500.00 limit.

22On balance, even in light of the minimal CNRs from the applicant’s family physician, I am satisfied that the applicant’s pre-existing medical condition removes him from treatment under the MIG.

Chronic pain

23As for the applicant’s claim to be removed from the MIG because of chronic pain, I find his x-ray supports that he has a complex pre-existing medical condition but require more evidence, including corroboration from his family physician regarding the frequency, nature and duration of the pain.

24There is no evidence that the applicant’s pain causes functional impairment. Overall, there is insufficient evidence to determine whether the applicant suffers from chronic pain.

Psychological injury

25The need for psychological treatment was not documented in the CNR of the applicant’s family physician. There was no mention of psychological issues in the two post-accident visits with Dr. Narducci or emergency department report. The applicant has sleeping issues, but the accident is not identified as the cause. Indeed, the respondent conducted a s.44 psychological assessment on November 6, 2019. The applicant told Dr. Mandel that he has no trouble with his sleep in relation to the accident. did not support the presence of psychological impairment related to the accident.

26I do not find that the applicant has demonstrated that he suffers from a psychological impairment related to the accident.

Reasonable and Necessary

27Section 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary.

Physiotherapy treatment plan ($200.00)

28The applicant exhausted the MIG limit when the treatment plan listed at paragraph [2]ii. was approved on October 29, 2019. The disputed $200.00 represents the unapproved amount of the physiotherapy treatment plan (total amount $1,300.00, approved for $1,100.00).

29Because no other medical or other reason was provided, I find that the balance of this treatment plan is payable since I have found that the applicant is not subject to the MIG.

Medical services/physical rehabilitation treatment plan ($4,240.47)

30The disputed treatment plan lists the goals as pain reduction, increase in strength and increased range of motion. It includes physical therapy, acupuncture and various medical accessories including a back support, pillow and TENS unit. The plan is estimated to take 8 weeks to complete.

31In support of his claim that this treatment plan is reasonable and necessary, the applicant relies on his disability certificate and CNR from 101 Physio.

32The applicant attended 101 Physio for 12 treatments that included massage, physiotherapy and acupuncture. The clinic’s notes indicate improvement in pain.

33His attendance records indicate that September 10, 2019 was the last time he attended. It appears that he did not attend for treatment partially approved on October 29, 2019. I have some concerns that the applicant discontinued attending 101 Physio, despite being approved for treatment.

34As for the respondent, it relies on a s.44 examination by occupational medicine physician, Dr. Sandhu, on September 20, 2019. Dr. Sandhu did not have a copy of the x-ray with the loose screw since the x-ray occurred the following month.

35During the examination, Dr. Sandhu noted that the applicant had tenderness on palpation of the scars on his left arm and that the scars were well-healed. I find this is consistent with the radiological finding that one of the screws in his arm plate was out of position. I accept this supports the applicant’s submission that the pain in his left arm was exacerbated by the accident.

36I agree with the applicant that Dr. Sandhu’s report should be given less weight as the respondent did not produce an addendum report after providing Dr. Sandhu with the x-ray. Dr. Sandhu mentions several times in his report that he was not supplied with any radiological imaging. In fact, on page 8 of his report, in answering the question “What is the impairment as a direct result of the motor vehicle accident?”, Dr. Sandhu states:

Today, Mr. Adeoye demonstrated no impairment in the range of motion of his cervical spine, shoulders, and lumbar spine. However, his ongoing left forearm pain would impair his ability to perform any heavy lifting with this arm. I would suggest that he undergo an x-ray of his arm to rule out any substantial underlying accident-related pathology. This may include displacement of the hardware in his left forearm. This can be arranged through his family physician and should the results become available for review; I would be happy review the same and provide an addendum to this report.

37At paragraph 47, in its submissions, the respondent submits that the conclusions of Dr. Sandhu continue to be supported by the evidence. I disagree. Without confirmation that Dr. Sandhu reviewed the x-ray of the left arm, I am not satisfied that Dr. Sandhu had sufficient information to determine that the applicant’s injuries were minor and that the treatment plan was not reasonable and necessary.

38I do not find that the s.44 occupational medicine report is persuasive in the absence of an addendum that considers the x-ray of the left arm.

39The treatment plan was submitted before the applicant obtained the x-ray of his left arm. I consider it likely that Dr. Coghlan would suggest a treatment plan that takes the loose screw into consideration.

40I am not prepared to find that this treatment plan is reasonable and necessary.

Psychological treatment plan ($2,460.00)

41I agree with the respondent that there is insufficient evidence to entitle the applicant for the $2,460.00 psychological treatment plan. The only healthcare provider to comment on this kind of medical treatment was the applicant’s chiropractor, Dr. Coghlan, author of the applicant’s disability certificate and Peter Waxer, author of the disputed psychological treatment plan.

42As outlined above, I do not find that the applicant has established that he suffers from a psychological injury related to the accident.

CONCLUSION AND ORDER

43The applicant is not subject to the MIG.

44The applicant is entitled to the remaining balance of $200.00 in the partially approved physiotherapy treatment plan.

45The applicant is not entitled to the medical services/physical rehabilitation plan.

46The applicant is not entitled to the psychological treatment.

47Interest is owing in accordance with the Schedule.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635 at para. 24 (Div. Ct.)```